Thursday, 1 April 2021
Children (Amendment) Bill 2020 [Seanad]: Committee and Remaining Stages
Our work on the Bill must conclude after 90 minutes if it is not previously concluded. Amendment No. 1 is in the name of the Minister. Amendments Nos. 1 and 2 are related and will be discussed together. Is that agreed? Agreed.
I move amendment No. 1:
In page 3, line 21, to delete "another child" and substitute "another child who is alive"
The amendments to subsections (1A) and (1B) are basically technical and are to make it clear beyond doubt that any restrictions on publication only relate to the protection of the interests of living children. They are being proposed following a careful review of the drafting and to provide for a scenario in subsection (1A) where there might be two deceased children and in subsection (1B) where there might two victims, one of which was a child at the time of the offence but an adult at the time of the proceedings and the other victim was a deceased child. For example, the existing draft of subsection (1A)(b)(i) might be viewed as bringing a second deceased child back within the scope of section 252 and preventing the naming of either deceased child, which is not the intention.
The wording of the amendment is: "In page 3, line 21, to delete "another child" and substitute "another child who is alive"." When we talk about the best interests of the child, we are not talking about the deceased child, we are talking only about a living child. The amendment is technical and takes on board points that have been made in this House, but also in the Seanad, in order to put beyond any reasonable doubt that this is what we are speaking about in any scenario.
I move amendment No. 3:
In page 4, to delete lines 8 to 18 and substitute the following: “and
(c) by the substitution of the following subsection for subsection (2):
“(2) The court—(a) shall, subject to such conditions (if any) as it considers appropriate, dispense with the requirements of subsection (1) in relation to a child referred to in that subsection where the proceedings concerned relate to the death of that child unless it is satisfied that to do so would—(i) not be in the best interests of another child referred to in that subsection who is alive, or(b) may, subject to such conditions (if any) as it considers appropriate, dispense with the requirements of subsection (1) in relation to a child referred to in that subsection where the proceedings concerned do not relate to the death of a child and where the court is satisfied that to so do—
(ii) contravene section 93,
and(i) is appropriate having regard to the best interests of that child,
(ii) would not be contrary to the best interests of another child referred to in that subsection who is alive, and
(iii) would not contravene section 93.".".
Again, the purpose this amendment is really to put beyond any reasonable doubt queries that have been raised by Deputies and Senators who were specifically concerned that the Bill might be misinterpreted or cause confusion as to the flexibility that a court has where there is a deceased child victim and another child victim or child witness to the proceedings. We asked the Attorney General to look at this and to reflect on the wording and the drafting and it has been recommended that we could make these amendments to try to clarify the matter.
Before the EC case in October 2020, the general view was that section 252 of the Children Act did not prevent the publication or broadcasting of material that might identify a deceased child unless it would lead to identifying a living child who was also a victim or a child who was a witness in the criminal proceedings. Even in that instance there are situations where that can be overruled or where there can be naming. The purpose of this Bill is to restore that position and to make it clear beyond any reasonable doubt.
Subsection (1A) does that by disapplying or removing the restrictions in proceedings which relate to the death of a child, subject to exceptions that I have already mentioned. I will give three scenarios. The first is if there is a deceased child and no other child involved, then there are no restrictions on the naming of the deceased child. If there is another living child, who is perhaps an accused or a witness in the proceedings, then there are no restrictions unless naming the deceased child could identify the living child. Very importantly, after that, if naming the deceased child could identify the living child, accused or witness, then the court must decide whether the deceased child can be named and subject to what conditions. It is not an absolute. If naming a deceased child could potentially identify a living child, whether an accused or a witness, there will be a provision allowing for the court and the judge to decide. That is putting the best interest provision first, where we must apply that, but it does not trump everything. There needs to be a balance, whether that is public interest or taking into account family requests or other scenarios as well.
The amendment to subsection (2) is to clarify that the restrictions on publication do not apply to deceased children, subject to the exceptions I have just outlined, relating to living children who are a victim, a witness in the proceedings or an accused. It also addresses the more complicated situations where the interests of more than one child need to be taken into account. I refer to amendment No. 1. We are talking about living children in this instance. Subsection (2) only applies if there is a danger that the publication or broadcasting of material might lead to the identification of a living child who is a victim, witness to the proceedings or an accused and the court has to consider where it is appropriate to dispense with, remove or relax the restrictions.
The existing subsection (2) and the proposed subsection (2A) are both being replaced by a new subsection (2)(a) and (b). Subsection (2)(a) deals with proceedings relating to the death of a child. This is where there is only one child involved. The word "shall" is used, imposing an obligation on the court to dispense with any restrictions relating to a deceased child, unless the interests of a living child who is a witness in the proceedings or an accused will be affected. The court then has to consider the matter and, for example, assess in the case of a child witness whether there are no conditions that could be imposed. It might decide that there are conditions that could be imposed. Section 93 exists separately, and we are not trying to amend it. The section relates to an accused child and there are already provisions under the Children Act whereby the first response is that one does not name the accused child. However, there can be certain circumstances such as public interest or otherwise where that can be allowed. We are not changing or amending that, and it will still apply.
Subsection (2)(b) deals with proceedings where there is no deceased child, where one might have a child victim but he or she is alive. It is left to the court to decide whether it is in the best interests of a child. If there is a sibling or a second living witness or a child involved, the court must take into account the best interests of those children.
The amendments are designed to put beyond all reasonable doubt that there is flexibility there. When there is a deceased child, but in particular where there is a living child, whether it is a witness, a potential perpetrator or victim, there is flexibility to name the deceased child. We must allow the court to take those conditions on board. The intention is to put the matter beyond reasonable doubt and to acknowledge that Deputies had grave concerns about this. The reason we are introducing this legislation is to clarify different interpretations of what existed and to bring it back to what we thought it was. We do not want a situation where we must come back to clarify it again when we could have done it in the House in the first instance.
I welcome this amendment and thank the Minister for taking on board people's concerns in this House and in the Upper House.
The Bill is striking a balance between what we want, namely, the disclosure of the name of a deceased child where it is in the interests of the family and public for that to happen while at the same time not removing the discretion of a court to make a determination in circumstances where that might not be the case. In the three instances outlined by the Minister, she struck a fair and good balance, and I thank her for that. I certainly will be supportive of the amendments.
I listened to the Minister's contribution. It is important that she has been very clear about what is intended. That helps to reduce the doubt that may well exist and it was necessary that she put her comments on the record. I feel a lot better about the Bill because I had some concerns about whether we would go back to the situation we had before the relevant court judgment. I thank the Minister. I am happy to support the amendments.
I also want to thank the Minister for the amendments. Section 252 of the Children Act caused a lot of turmoil for many families and people across the State over the past number of months, in particular. While advocating on behalf of everyone involved, we also need to put as much power as possible back in the hands of courts and judges to make the correct decision in the appropriate circumstances before them. I think that is what these amendments try to do. I welcome them and will support them. It is a good piece of work to get the Bill through the Houses so fast. I commend the Minister and everyone involved, from Opposition and Government, on trying to resolve the situation and get it sorted out so quickly.
I thank the Minister and commend her for taking on board the concerns I expressed in the debate on Second Stage on 11 March. She also communicated with Senator McDowell in the Upper House. I also want to commend the Attorney General. The amendments make it far clearer to a court the intention of the Oireachtas when it comes to the amendment to section 252.
I welcome the first two amendments, which specify that the child being referred to in the relevant subparagraph is a child that is alive. The inclusion of a new section 2 is much clearer and ensures that the court has discretion. The concern I expressed on a previous occasion was that subsection 1A and the new section 2A would mean a court would have no discretion if it was the case that identifying a deceased child would result in the identification of a child witness or a child accused, notwithstanding the provisions contained in section 93 of the Act. The wording that is there now gives the court discretion in respect of a deceased child and the ability to name the child in circumstances where there may be another child witness who could be identified as a result of that.
I also welcome the fact that it creates and provides for discretion for the court in circumstances where the child victim is not deceased and the child is, in fact, alive but still the victim of a criminal offence. That discretionary provision is set out in the second part of subsection 2.
I thank the Minister for what she has done. It improves the Bill. I want to commend her on moving it quickly. Legislation can take time to change. This is a complicated Bill and the collective efforts of people in this House and the other House have ensured that we have resolved a problem and put forward a piece of proposed legislation that is much clearer and which, it is to be hoped, the courts will see as much clearer.
I want to join with other speakers in thanking the Minister and her officials for bringing this forward so quickly in response to what had been a serious practical problem. The Bill and the amendments have my full support, and the Minister knows that. The cases have been very difficult.
We still have to talk about another group of children who are not encompassed by this Bill. A third category of children are not accused or witnesses; they are the siblings of deceased children and are not protected by the provisions of the Bill. There is a strong privacy case to be made for those children, in particular children whose siblings have died in circumstances where there is a verdict of not guilty by reason of insanity. It is not the same as murder or manslaughter, but is something very different. We distinguish that form of criminal process very strongly from everything else. We think about and treat it differently in terms of sentencing and recovery. Sometimes, as I said at length on Second Stage, the source of that can be very considerable mental illness.
As the Minister knows, I have engaged extensively with a family at the core of this case. A sibling has been identified again and again in the community and is trying to rebuild a life. My concern has always been around the privacy of the younger child. There is a very strong impetus driving the Bill and the discussion around it, namely, Article 34 concerns around court processes.
I blame myself for not having been more engaged with the Bill at an earlier stage. One issue is giving the same weight to the Article 42A concerns of other children affected by these cases. A sibling is protected if he or she was a witness to an unlawful killing, but not if he or she was in a different room and, therefore, was not a witness. The implications for rebuilding his or her life are the same.
I want to thank the officials for their engagement with me and the discussion on this issue. It is clearly not covered by the Bill but there is an ongoing issue in regard to how children affected by criminal issues of this kind are treated more broadly. Other Deputies have concerns about where that may go in terms of somebody being convicted of theft, assault or something like that, and his or her children being identifiable by virtue of the accused and convicted person being named publicly. This is a slightly different issue.
The privacy rights of a subset of children are being impacted by this, and the Bill does not square this away. There is broader policy work to be done, which I appreciate, but I also know from experience that could take anywhere from one to three years to deal with, as well as homicide review more generally.
I did not table an amendment because I know from a process perspective the House wants the Bill to be passed quickly. There is a measure of speed around it. In any event, the Minister would have to go back to the Attorney General and Cabinet to have that discussion, and it would complicate the Bill very considerably. I know there is no point in doing that. However, I have to put my concerns on the record of the House.
I worry that this issue will come up by way of judicial review. A court may end up looking at this issue under Article 42A in any event. If that happens, I want to have flagged it. I am not trying to be unhelpful. Rather, I want to take the time to flag this issue on the record in order to identify that this is a class of children who may be so affected and that the implications for them and their lives, because of the possible behaviour of media, are significant in terms of trying to rebuild family life with somebody who has committed an unlawful killing but was found not guilty by reason of insanity, something we think about and treat very differently from everything else. I support the Bill and amendments, but I have to take this opportunity to put this very strongly on the record.
I will respond specifically to the points raised by Deputy Carroll MacNeill. I am very sympathetic to the points she has raised. On foot of her raising that the last time we spoke in the Dáil, I asked my officials to engage with her and explore this potential change. What became very apparent, as the Deputy outlined, was that this is quite a complex area. In some cases, it goes outside the scope of section 252. The intention of the Bill is try to restore the thought that existed before the case in October last year in respect of section 252.
I give Deputy Carroll MacNeill a commitment to explore this matter further to see how it could potentially be addressed. I am not sure whether it will require a miscellaneous provisions Bill or otherwise but I commit to exploring the matter further, acknowledging the spirit of co-operation in which the Deputy raised this point. I thank her for support for the legislation.
I thank all Deputies for their support in progressing the Bill as quickly as possible. We could only do that because there was cross-party support. I thank Deputy Jim O'Callaghan and Senator McDowell for their collaboration in putting the Bill together and allowing us to bring it through so quickly. We intend to restore the position that obtained prior to the ruling in October to ensure that parents of deceased children can name them in public and remember them in the way they want. I sincerely hope that, once the legislation has been fully enacted in the coming weeks, this right will be restored and we will have dealt with an issue that caused significant hurt and pain to many.